Legal Commentary

At yesterday?s dedication of Eckstein Hall at Marquette University Law School, Wisconsin Supreme Court Chief Justice Shirley Abrahamson referred to Justice Scalia? s admonition that students not take courses in Law and Ice Cream.  Speaking later, Justice Scalia confirmed that advice and added his relief that Marquette offers no such course.

It will surprise few who know me that I yield to no one in my admiration for Justice Scalia. But, being an enthusiastic proponent of both law and ice cream, I wondered what such a course would look like. What might it teach?  I have imagined Law and Ice Cream and it turns out to be quite (may God forgive me) rich.

The learning objectives are almost as unlimited as the menu of custards at Milwaukee's jsutifiably famous Kopp?s Frozen Custard, running  a legal gamut every bit as diverse as the distance between, say, Éclair Affair to Banana Walnut Chocolate Chunk.

We might consider:

The Rule of Law: Consider this treatment of Kant?s Categorical Imperative as expressed in a rule limited customers to one sample at a Melbourne gelateria. The story raises the question of precedent and the tension between even handedness and circumstantial justice. How is one supposed to decide on a flavor if she does not like the one sample that she is permitted? Can consumer choice ? can the entry into a contract (e.g., ?I?ll take the Palermo Lemon?) ? be considered free when a customer cannot find out what she likes? The author?s treatment of Menu Anxiety brings to mind the Paradox of Choice and Cass Sunstein?s work on the need for the law to engage in ?libertarian paternalism? and shape our choice architecture. Bienenstichenkuche is too busy. Maybe we shouldn?t ban it, but we may well want to nudge people toward, I don?t know, Grasshopper Fudge. 

The Regulatory State and Administrative Law: Years (ok, many years) later, I still recall reading, as a law student, a withering critique of federal regulations seeking to define the Platonic Ideal of Peanut Butter. Yet 21 CFR Part 135 is chock full of regulatory requirements defining what can and cannot be ice cream. We could learn how to read a code while considering whether the regulatory scheme can accommodate the many variations of ice cream, including the soft ice cream developed by a British chemical team that included a young Margaret Thatcher. (What a woman ? the revitalization of the UK, victory in the Cold War and Soft Serve. That is a legacy.)

Liability: What ought to be the responsibility for the manufacturer and purveyors of ice cream for inducing the dread sphenopalatine ganglioneuralgia (more commonly known as the ?ice cream headache? or ?brain freeze.?) How should lawyers manage that risk? Can we devise a warning (Slurp Slowly)? How prominently must it be displayed? (Should it, for example, be embossed in cones?) Should it include remedial advice such as placing one?s tongue on the roof of the mouth? I see a very practical, skill-based component.

I can think of other pedagogical goals. Many law firms ? including my old one ? now organize their lawyers into industry groups rather than departments organized by legal specialty. What would it mean for a law firm to organize a group to serve the frozen confections industry? I?ve got to believe there would be a huge IP component. Rocky Road and Chubby Hubby did not just fall from trees.

There may even be a criminal justice aspect and, in AALS terms, ?socioeconomics? slant. Consider this illustration of the alienation caused by ice cream deprivation and the unity in demanding custard from power as illustrated in Jim Jarmisch?s classic film Down By Law.